Child Porn Criminal Wins Compensation From Food Giant Nestle

The Importance of Procedures and Natural Justice

Such was the headline in the Herald Sun on 7 July 2010. It was designed to attract interest and it did. But for all the wrong reasons. The message implicit in the headline was that the employer can’t win. One might have sympathy for such a view, but the fact remains that following a few simple steps could have prevented Nestle’s expensive trip to Fair Work Australia.

Steve Wilson had been a casual employee of the Uncle Toby plant at Wagunyah for seven years. When the local newspaper reported he had been convicted of eight offences, including producing and possessing child pornography, he was not offered any more shifts. Seems fair enough? But Fair Work Australia found that Steve Wilson had been unfairly dismissed and that Uncle Toby was a “procedural fairness-free zone”.

The company had no further contact with Mr Wilson after the newspaper report, but in June cancelled his security access card. This was construed as dismissal. The key point is that although FWA found the company had a valid reason for dismissing him, the process wasn’t fair.

What should Uncle Toby have done? It should have followed a proper disciplinary process. In Mr Wilson’s case, the company should have written to him setting out the allegations. This letter should have included an explanation of how he had breached company policy and standards. Mr Wilson should then have been given the opportunity to respond.

These fundamental steps assume that the company has in place the following: appropriate policies and standards, including a Code of Conduct or similar; a documented discipline process; clear definitions concerning standards of evidence; and the measures which underline the elimination of bias from the process.

LKA Group are aware of an increasing number of challenges to employer’s decisions being based on flaws in procedure and natural justice. A routine ‘health check’ in this respect is recommended.

Nestle were ordered to compensate Steven Wilson with ten days pay. One can only imagine the feelings of the manager who had to sign that cheque.